Marc Randazza, the lawyer working to protect First Amendment rights of people spewing socially undesirable speech, recently opened up to Buzzfeed News about his devotion to the First Amendment and how representing neo-Nazis, trolls, and Satanists helps him uphold what he believes is one of the most important ideals this country was founded upon.
The First Amendment guarantees United States citizens a constitutional right to freedom of speech. Government cannot infringe upon this right, although certain types of speech such as incitement, obscenity, and defamation do receive less protection. Protection can be based on the place in which speech occurs. For instance, speech that takes place on the campus of a public school has high First Amendment protection but speech in a private workplace receives little protection. Between court rulings and interpretation of the Constitution, protections of free speech have become pretty well defined over the last several decades. However, there’s one grey area that is polarizing First Amendment advocates today – speech on the Internet.
That’s where Randazza focuses much of his effort.
Section 230 of the Communications Decency Act (CDA) protects technology platforms from liability based on their users’ content, but despite this protection, tech giants are restricting their users’ speech. Facebook, Twitter, and YouTube claim they can take down any content they consider inappropriate or objectionable. Moreover, these platforms claim they have the right to ban undesirable members. Randazza believes that the Internet is a de facto public space, meaning it is privately owned yet publicly accessible, and therefore, online platforms must be more tolerant of such speech, especially given that they are afforded immunity through the CDA.
One group that claims they are a target of such discrimination are white nationalists. While their rhetoric is seemingly experiencing a wave of popularity, it’s also publicly despised and tech giants are being accused of suppressing it. Scratch the surface of Jared Taylor’s lawsuit against Twitter or Alex Jones’ lawsuit against PayPal and you’ll understand why Randazza thinks white nationalists are one of today’s most vulnerable groups in regard to the suppression of free speech.
Randazza has received heavy criticism from his peers not so much for his position, but more so for representing extremists like Taylor and Jones. But, he believes that protecting First Amendment rights is a matter of principle, not message.
“Sometimes we have to take people on who we find unsavory, but that’s what a commitment to the First Amendment means,” said Randazza.
Read the full article about Marc Randazza on Buzzfeed News.
An article about one of Marc Randazza’s most controversial and groundbreaking cases – a case involving the founder of a Neo-Nazi website Andrew Anglin – was published in the December issue of the Atlantic magazine.
The article, “The Making of an American Nazi”, tells the story of the founder of The Daily Stormer: the site that is arguably the leading hate site and neo-Nazi platform on the internet. Anglin is now being sued for allegedly harassing Tanya Gersh, a Whitefish, Montana, real estate agent, and orchestrating an anti-Semitic online trolling campaign against her family.
In April, she filed a lawsuit claiming that anonymous internet trolls started bombarding her family with hateful and threatening messages after Anglin wrote a post blaming Gersh for engaging in “extortion” regarding a property sale from Sherry Spencer, whose son is another white nationalist and arguably the face of the alt-right movement. In that post, Anglin shared personal details, including photographs of Gersh’s family and other Jewish citizens of Whitefish, and called on his supporters, the “Stormer Troll Army” – to “hit ’em up.”
Currently, Gersh is suing Anglin for invasion of privacy, intentional infliction of emotional distress, and violation of a Montana anti-intimidation statute. Marc Randazza is representing Anglin in this case. Anglin is also accused of unleashing a campaign against other Jewish residents of Whitefish, as well as “cyberstalking” and aggressive online trolling of other people, whose identity or views are not in line with his beliefs as a white nationalist.
It’s also reported that apart from committing the aforementioned activities, encouraging his followers and fellow nationalists to share his views online and participate in cyber trolling campaigns; Anglin allegedly continued to grow his audience and supposedly urged them to take their hate from the online to the real world.
Marc Randazza, the managing partner of the Randazza Legal Group, is representing Andrew Anglin. This lawsuit has attracted the attention of legal experts and the public not only due to Anglin’s notorious personality, but because it’s the first time that an internet troll is being sued for his actions.
However, according to Marc Randazza, a well-known First Amendment attorney and a fighter for free speech, restricting Anglin’s online trolling may set a dangerous precedent for the American legal system. As Mr. Randazza commented, Anglin “has every right to ask people to share their views, no matter how abhorrent those views are…this is the shitty price we have to pay for freedom.”
You remember that episode, where Michael Scott declares bankruptcy?
Keep that in mind for this lesson, kids.
This happens to all of us, from time to time. A lawyer sends you a letter with some threatening language on it that he thinks accomplishes his goal of making it “confidential.” You know, like this:
CONFIDENTIAL LEGAL NOTICE
PUBLICATION OR DISSEMINATION IS PROHIBITED
The correct legal response is “suck my ass” or whatever you want to say. Ok, fine, how about “your point is invalid”. Let’s go with that. It is nicer, after all. And I’m all about being nice.
Now here’s one thing you can rest assured of: If someone puts that foolishness on their letter, it is because they’re afraid of that letter getting out there. They can’t possibly have confidence in what’s in it. Look, I write a letter, I expect that it might wind up getting slapped on Simple Justice, with Greenfield making fun of it. Even then, I can’t seem to catch every typo. But you know what? If my name is on it, you can bet your ass that I’ll own it.
And here’s why you can make the chucklefuck who signed YOUR letter own it by publishing the shit out of it, if you want.
For starters, saying “This letter constitutes confidential legal communication and may not be published in any manner.” is about as legally compelling as Michael Scott yelling “I DECLARE BANKRUPTCY.” Lawyers do not have magic powers that turn letters into confidential communications. You’re more likely to find a lawyer who can turn water into funk than a lawyer who has the magic spell to make a letter confidential. Sure, there might be some rules that make them inadmissible for certain purposes in litigation. But, you wanna share that letter? Go right the fuck ahead. Unless you’ve agreed to confidentiality, it ain’t confidential.
When I get one, I usually email the other guy and say “I’m not going to respect your request for confidentiality.” I give them a chance to support their position. When they don’t, I ask them if they want to give me something in exchange for confidentiality. So far, no takers.
Then, they realize “holy flaming peckerballs, this Randazza character can see right through the I DECLARE CONFIDENTIALITY trick! Randazza has spell capability? FUCK, he’s not a fighter, he’s a goddamned level 9 Ranger, and he’s got Druid spells! HE JUST CAST THE ‘SEE THROUGH BULLSHIT’ SPELL!!!!!
I know, it’s my intellectualize proprietary res judicata!
So then they try again…
“Aha, smart ass. That letter is COPYRIGHTED! I hereby throw the spell of Title 17!”
Bush. League. Shit.
If someone pulls that on you, they’re even more full of shit than the guy who just tries the I DECLARE CONFIDENTIALITY spell.
Dumbass rolls a 2.
Here’s why:
It is no secret that the film, The People vs. Larry Flynt is one of my favorite movies of all time. It was required viewing in my classes, back when I did the lawprof thing. New hires need to watch it at my firm. You need to watch it.
Most of my readers are fully aware of the Supreme Court case depicted in the film. However, the lesser known case, mentioned for all of 30 seconds in the film, is the Hustler v. Moral Majoritycountersuit.
In that case, Jerry Falwell took the “Jerry Falwell Talks About His First Time” Campari parody and sent it to his Moral Majority minions — soliciting donations. Falwell took the entire copyrighted work and used it for a blatantly commercial purpose.
One of Falwell’s top executives conceded that the inclusion of a copy of the ad parody was part of a “marketing approach” to fund-raising, and the court can safely assume that this strategy involved encouraging the faithful to donate money. Hustler v. Moral Majority, 606 F. Supp. 1526, 1534 (C.D. Calif. 1985).
However, the court also found that he was not using the ad to elicit support for purely commercial gain, but even if he was, this did not dissolve his fair use defense.
[T]he court must also consider whether “the alleged infringers copied the material to use it for the same intrinsic purpose for which the copyright owner intended it to be used.” Marcus, 695 F.2d at 1175; Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.), cert. denied 459 U.S. 879, 74 L. Ed. 2d 143, 103 S. Ct. 175 (1982) (same); see Italian Book Corp. v. American Broadcasting Companies, 458 F. Supp. 65, 70 (S.D.N.Y. 1978) (fair use generally sustained if defendant’s use not in competition with the copyrighted use). Under this principle, defendant’s use is more likely to be considered fair if it serves a different function than plaintiff’s.
…
In distributing the parody Falwell evidently meant to provoke the anger of his followers and to comment on the level of obscenity in the work.
The C.D. of California also pointed out portions of the Copyright Act’s legislative history, upon which a re-poster of a demand letter can rely:
The court discerns additional support for Falwell’s position in the legislative history to section 107. The House Report states: “When a copyrighted work contains unfair, inaccurate, or derogatory information concerning an individual or institution, the individual or institution may copy and re-produce such parts of the work as are necessary to permit understandable comment on the state-ments made in the work.” House Report, supra, at 73. It would thus be consistent with congressional intent to find that Falwell was entitled to provide his followers with copies of the parody in order effectively to give his views of the derogatory statements it contained.
Accordingly, when a law firm sends you a cease and desist letter accusing you of illegal activity, you can use that letter to provide your own supporters with copies of it in order to effectively give your own views on the issue — and to gather support for your cause. And… to make fun of that shit (because making fun of buffoons is classic fair use)
The legal landscape for I DECLARE CONFIDENTIALITY gets even more gloomy as we continue to read the Hustler case. The First Amendment rears her sexy pouty slutty face. (Yes, I want to bang Lady Liberty. Its a fetish. Constitutional cosplay anyone?)
First amendment considerations also enter into the court’s assessment of the purpose and character of defendants’ use. Although the first amendment does not provide a defense to copyright infringement, when an act of copying occurs in the course of a political, social or moral debate, the public interest in free expression is one factor favoring a finding of fair use. See Keep Thomson Governor Committee v. Citizens for Gallen Committee, 457 F. Supp. 957, 959-60 (D.N.H. 1978) (political committee’s use of a portion of rival candidate’s musical composition amounted to fair use in light of public interest in full debate over election and absence of injury to plaintiff). Cf. Robert Stigwood Group Limited v. O’Reilly, 346 F. Supp. 376, 383-84 (D. Conn. 1972), (priests’ un-authorized copying of rock opera, “Jesus Christ Superstar,” was not fair use where facts did not support defendants’ contention that their performance was counterattack to original’s “perverted” version of the Gospel), rev’d on other grounds, 530 F.2d 1096 (2d Cir.), cert. denied, 429 U.S. 848, 50 L. Ed. 2d 121, 97 S. Ct. 135 (1976).
Similarly, anyone who receives a cease and desist letter, from any lawyer (including me) can certainly claim that there is a debate at hand. Without the debate, there would be no complained-of statements or actions. It does not take Justice Brennan to see the First Amendment protection inherent in the republication of a demand letter in this context.
The purpose of copyright is to create incentives for creative effort. Even copying for noncommercial purposes may impair the copyright holder’s ability to obtain the rewards that Congress intended him to have. But a use that has no demonstrable effect upon the potential market for, or the value of, the copyrighted work need not be prohibited in order to protect the author’s incentive to create. The prohibition of such non-commercial uses would merely inhibit access to ideas without any countervailing benefit. Sony Corp. v. Universal City Studios, 104 S. Ct. 774, 793 (1984)
Under the “harm to the market for the original” prong of fair use, if the defendant’s use would tend to diminish sales of the plaintiffs work, then the factor can count against the defendant. However, that only applies if it would supplant the marketplace for the original. For example, if I copied a demand letter and used it as my own, then I might be committing copyright infringement. On the other hand, if I use the demand letter to ridicule the author, and the result of that ridicule is that consumers form the opinion that perhaps it would not not be a wise choice to select that lawyer to represent them, that is protected speech.
Let us return to Hustler v. Falwell:
The court has carefully considered all the evidence placed before it in light of the factors set out in section 107. It concludes that the “‘equitable rule of reason ‘ balance,” Sony Corp., 104 S. Ct. at 795, tilts sharply in favor of a finding of fair use. Any other result would mean applying the copyright laws in an inflexible manner and ignoring fundamental considerations of fairness. The ad parody was a satire about Falwell. He was entitled to use it as he did.
Exactly. The cease and desist is an instrument of attack upon the recipient. Any court that would find that this is copyright infringement should be reversed or impeached.
Okay counselor, but do you have a case that is exactly on point?
As a matter of fact, I do.
In Online Policy Group v. Diebold, the Northern District of California held that “fair use is not an infringement of copyright.” This is a slight tilt from the more common “fair use is an affirmative defense” logic. The N.D.Calif. held that the copying of the copyrighted materials (Diebold email archives) was so clearly fair use that “[n]o reasonable copyright holder could have believed that [they] were protected by copyright.” The court in that case held that a DMCA notice and take down was defective and that the sender was liable for material misrepresentation. § 512(f) FTW.
Conclusion
In short, while this is not legal advice, I’d say that if you want to reproduce a cease and desist letter as an act of self-defense or criticism, you should feel comfortable that the fair use defense will back you up.
And if you are the author of a cease and desist letter, don’t write anything that you don’t want the entire world to see.
Bottom line, no court has ever held I DECLARE CONFIDENTIALITY to be valid, nor has any court supported the “DON’T MAKE FUN OF ME BECAUSE COPYRIGHT” position – but an undisturbed case, relying on mountains of precedent, refutes it.
Short version of the story: Lena Dunham wrote a book in which she arguably wrote about doing some sketchy shit with her little sister. Truth Revolt wrote about it. The quotes from the book back up the Truth Revolt article. Dunham got all snippy about it. (source)
Its not stupid that she did it. She was a child. Ok. I can live with that. Its not even stupid that she wrote about it. Respect to her. (Ok, not really, book sounds like a piece of shit) But, what the monkeys-eating-their-own-feces-fuck was she thinking in authorizing a law firm to make a stink about it? Stupid. Well, unless they had a meeting and said “hey, Lena, want us to totally fiddle-fuck you by making you look like an asshole? Well then, have we got a plan for you!” If that happened, then GENIUS!
This article constitutes confidential legal communication and may not be published in any manner.
It’s an all-too-common scenario: A blogger criticizes someone online, and then gets sued for his statements. But two things make this case unique: First, the plaintiff sued because of the blogger’s characterizations of him shooting two dogs at close range; second, the defendant blogger was in Florida – and thus protected by Fla. Stat. § 770.01. (I am proud to have represented Mr. VanVoorhis, the blogger in this case).
Florida’s pre-suit notice statute, § 770.01, requires defamation plaintiffs to alert defendants to the allegedly defamatory material before filing suit. The statute reads, in its entirety:
770.01 Notice condition precedent to action or prosecution for libel or slander.
Before any civil action is brought for publication or broadcast, in a newspaper, periodical, or other medium, of a libel or slander, the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant, specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory
Florida’s appellate courts have interpreted this very strictly. Essentially, the statute doesn’t let you sue someone (as long as they are covered by the statute) unless you meet its conditions. It has a tendency to relieve courts of the burden of at least some frivolous defamation litigation, because the statute requires a defamation plaintiff to focus his attention on what, precisely, he finds to be defamatory and to articulate his concerns in writing. Theoretically, we must presume that such an exercise generates at least some self-reflection by parties and attorneys who might otherwise file unsupportable SLAPP suits.
The fact that 770.01 applies to newspapers and periodicals has never been challenged. When the legislature added “other medium” to the statute in 1976, I think it was being forward-thinking in trying to make the statute broad enough to embrace new media that might come into being. I always felt that “other medium” was clear enough. The Internet is a “medium,” so why shouldn’t 770.01 protect bloggers? We raised that issue at the trial court in this case, and the court gave us a pretty succinct ruling in our favor. (Trial Court Order).
Comins appealed, and he took the position that the words “other medium” did not extend to the Internet, and even if it did, it would only apply to news media. (Appellant’s brief at 14-15). Comins further argued that even if it extended to the Internet, Mr. VanVoorhis was not a “media defendant,” since he was not “a journalist.”
We argued that the language “or other medium” includes the Internet, and most certainly includes blogs. (Answer Brief). In fact, we took the position that the statute should apply to everyone, media, non-media, or anyone else. (The court did not hold that broadly). However, we also argued that no matter how the court looked at the scope of 770.01, it should apply to our client, because he was a “media defendant,” despite the fact that he “only” published on a blog.
The essential point, which the appellate court agreed with, is that a “journalist” is not something you are but is rather something that you do. Mr. VanVoorhis’ blog was journalism, and thus he was considered to be a “media defendant.” In agreeing, the appellate court gave us some wonderful language supporting the proposition that bloggers serve an essential function.
[I]t is hard to dispute that the advent of the internet as a medium and the emergence of the blog as a means of free dissemination of news and public comment have been transformative. By some accounts, there are in the range of 300 million blogs worldwide. The variety and quality of these are such that the word “blog” itself is an evolving term and concept. The impact of blogs has been so great that even terms traditionally well defined and understood in journalism are changing as journalists increasingly employ the tools and techniques of bloggers – and vice versa. In employing the word “blog,” we consider a site operated by a single individual or a small group that has primarily an informational purpose, most commonly in an area of special interest, knowledge or expertise of the blogger, and which usually provides for public impact or feedback. In that sense, it appears clear that many blogs and bloggers will fall within the broad reach of “media,” and, if accused of defamatory statements, will qualify as a “media defendant” for purposes of Florida’s defamation law as discussed above.
There are many outstanding blogs on particular topics, managed by persons of exceptional expertise, to whom we look for the most immediate information on recent developments and on whom we rely for informed explanations of the meaning of these developments. Other blogs run the gamut of quality of expertise, explanation and even- handed treatment of their subjects. We are not prepared to say that all blogs and all bloggers would qualify for the protection of section 770.01, Florida Statutes, but we conclude that VanVoorhis’s blog, at issue here, is within the ambit of the statute’s protection as an alternative medium of news and public comment.
…
The presuit notice requirement of section 770.01 applies to allegedly defamatory statements made in such a public medium the purpose of which is the free dissemination of news or analytical comment on matters of public concern.(Op. at 23-24)
In other words, if a blog is a legitimate news source, it is just as protected as if it were The New York Times.
But, the court did not go so far as to say that everyone gets protection under the statute, and not every blog is a member of the media. There are certainly blogs out there that have different missions, and those would not be covered.
This is a great decision for bloggers, especially those who might find themselves under the threat of a defamation suit in Florida.
As a practice note, I have often said that filing a defamation claim in Florida without sending a 770.01 notice should be per se legal malpractice. The simple exercise of sending a letter, where you articulate your legal theory, should be no great burden on any plaintiff. This case should make that clear. We certainly believed (and argued) that the defense should have prevailed on the merits. See Answer brief at 36-68. However, neither the trial court nor the appellate court ever looked at the merits — since the claims were barred completely by the plaintiff’s failure to comply with the simple exercise of sending a pre-suit letter.
Conversely, if you’re defending a blogger in Florida, do not fail to raise the 770.01 issue at the pleading stage. While it may be more satisfying to prevail on the actual merits of the case, this route is a lot easier and cheaper than a trial on the merits.
I’ve been involved in the debate over whether we should criminalize “revenge porn.” As much as I despise the practice, I don’t agree with new criminal laws to punish it. In fact, I just spent some time on a panel at Stanford Law School, in the company of three people I greatly admire — one of whom (Attorney Erica Johnstone — one of the founders of “Without My Consent“) is a strong proponent of enacting new criminal laws to punish “Non-Consensual Porn.”
We had a very respectful debate over our differing opinions. During that discussion, I shared one of my rationales — that law enforcement just won’t give a shit. I’ve personally spoken with prosecutors about revenge porn cases in which the victim is underage — so a bona fide child pornography prosecution, wrapped up in a nice little bow for them. All they need to do is go grab the perpetrator.
The reaction?
“We just don’t have the resources to go after every one of these guys.”
Ok, fair enough. A 14 year old girl who had her life thrown upside-down. A child who expected that the state might give a shit about her. She’s not a priority. I’m not going to shit on law enforcement for making that judgment call, although that might seem to be a proper reaction. Lets look at it this way — that 14 year old girl had her life thrown upside down, but somewhere maybe, there’s an 8 year old girl tied up in a basement, and they need the resources they have in order to go save her. Fair enough?
But then, if that’s our rationale for ignoring the 14 year old, how are we ever going to convince a detective or a prosecutor to go after the ex-wife of a 35 year old guy who might wind up on an Non-Consensual Porn website, because his ex got pissed off at him and submitted some cock shots to the latest NCP site?
We aren’t.
When I get interviewed about this kind of thing, I often mock our law enforcement priorities – stating “If there were some underage kids drinking, or an old lady smoking pot for her glaucoma, they’d send in the troops. But, not for this kind of thing.”
Yeah… exactly. Swat teams for small amounts of marijuana, which never hurt anyone. Meanwhile, the kids I represent in civil cases can’t get law enforcement to give a shit about them, because resources.
You know, resources spent going after middle aged women who are buying plant food – because sometimes you might catch someone with a little bit of weed. (One of many sources)
This is not a Star Trek order. There are no pithy jokes here. There is, however, a shocking exposé of just how insidious the government can be in coercing silence when you speak out against outdated, incorrect, and even dangerous “conventional wisdom.”
Steve Cooksey ran a blog advocating a low-carbohydrate, high-protein diet. This diet and its permutations are generally known as known as a “paleo,” “primal” or “caveman” diet, and is based on eliminating historically recent additions to the human diet, such as processed grains. This more or less inverts the USDA’s food pyramid (or triangle, depending on what generation you are), putting meat at the base of the pyramid with rough, leafy greens, and treating carbohydrate-laden foods like bread as less important. Like anything people feel strongly about, the ambassadors of the paleo diet can be abrasive and annoying. But, it works.
Cooksey’s backstory is remarkable, but surprisingly common among health advocates. A Type II (adult-onset) diabetic, Cooksey was rushed to a hospital on the verge of a coma in 2009. His dietitians advised him to eat a diet high in carbohydrates. Cooksey, however, investigated matters himself and arrived at a diet high in protein and low in carbohydrates. His blood sugar normalized and he was able to stop using insulin. With a combination of diet and exercise (rather than, say, “fat acceptance”), Cooksey lost 78 pounds and felt better than ever before.
Paying it forward, Cooksey opened his blog, diabetes-warrior.net, in early 2010. Cooksey used the blog to talk about his diet and lifestyle changes. He even included a disclaimer that he was not a licensed medical profession and had no medical qualifications – similar to how legal bloggers are quick to reminder readers that nothing they say online is legal advice. The overarching theme of Cooksey’s blog was that high-carbohydrate diets caused more diabetes. During the months of December 2011 and January 2012, Cooksey’s blog had 20,000 unique visitors.
Then Cooksey made the mistake all new red-pill types do: He explained his views to a weak and deliberately helpless public. In July 2012, Cooksey attended a nutritional seminar for diabetics. The seminar’s speaker advocated a high-carbohydrate diet for diabetics; Cooksey responded by advocating a low-carbohydrate diet instead. An attendee at the seminar was so “””offended””” that he or she reported Cooksey to the North Carolina Board for Dietetics/Nutrition (the “Board”), claiming Cooksey’s advocacy was actually the unlicensed practice of dietetics. Under North Carolina law governing dietetics, only licensed dietitians may provide nutrition care services, which have a broad definition that includes:
a. Assessing the nutritional needs of individuals and groups, and determining resources and constraints in the practice setting.
b. Establishing priorities, goals, and objectives that meet nutritional needs and are consistent with available resources and constraints.
c. Providing nutrition counseling in health and disease.
d. Developing, implementing, and managing nutrition care systems.
e. Evaluating, making changes in, and maintaining appropriate standards of quality in food and nutrition services.
Under North Carolina law, each and every act of unlicensed practice of dietetics is a separate misdemeanor.
The Board contacted Cooksey. It told him that he would need to change his website. It also told him that it was statutorily entitled to get an injunction against him. Cooksey, fearing civil action, reluctantly complied with the Board’s initial demands to change his website, removing parts that might have been considered “advice” to visitors.
The Board told Cooksey it would review his website and tell him what he could and couldn’t say without a dietitian’s license. After reviewing Cooksey’s site, the Board got back to him with pages and pages of comments. The Board’s message was clear: Fix it – or else. Again, Cooksey acquiesced – this time in fear of civil and even criminal penalties. Despite not communicating with the Board, it nevertheless sent Cooksey a letter, noting that he had made the requested changes, and tacitly warning Cooksey that it would “continue to monitor the situation.”
After receiving this letter, Cooksey filed suit under 42 U.S.C. § 1983 for the Board’s actions chilling his First Amendment protected speech. He also sought a declaratory judgment that North Carolina’s statutes were unconstitutional both facially and as-applied. The Board moved to dismiss under Fed. R. Civ. P. 12(b)(1) for lack of standing and lack of ripeness, and 12(b)(6) for failure to state a claim. The district court granted the motion, holding that “voluntarily removing parts of one’s website in response to an inquiry from a state licensing board is not a sufficient injury to invoke Article III standing.” The court also found that Cooksey was not subject to actual or imminent enforcement of the Board’s draconian laws.
At first blush, it seems that the district court took an unusually charitable view toward the Board’s actions. Many who read this blog would disagree with the outcome. Cooksey disagreed. And so, too, did the United States Court of Appeals for the Fourth Circuit.
The Fourth Circuit’s panel – which included former United States Supreme Court Justice Sandra Day O’Connor sitting by designation – reviewed the dismissal de novo, or anew (conducting a new, independent analysis of the facts that were before the district court). The Court of Appeals embarked on an analysis of justiciability with two old law school (and in one case, law practice) favorites, standing and ripeness. The analysis is considerable, going on for many pages. Some highlights are excerpted below:
On the question of standing:
In First Amendment cases, the injury-in-fact element is commonly satisfied by a sufficient showing of “self-censorship, which occurs when a claimant is chilled from exercising h[is] right to free expression.” Benham v. City of Charlotte, 635 F.3d 129, 135 (4th Cir. 2011) (internal quotation marks omitted).
However, this anticipated cannot just be speculative or the fruit of conjecture. The appeals court quickly outlined how Cooksey’s case allowed him to have standing, largely due to the Board’s aggression:
In the present case, we not only have evidence of specific and — unlike NCRL — unsolicited written and oral correspondence from the State Board explaining that Cooksey’s speech violates the Act, but we also have a plaintiff who stopped engaging in speech because of such correspondence, and an explicit warning from the State Board that it will continue to monitor the plaintiff’s speech in the future. See J.A. 18 (Compl. ¶ 63-64) (Burill told Cooksey “that he and his website were under investigation” and that the State Board “does have the statutory authority to seek an injunction to prevent the unlicensed practice of dietetics.”); id. at 39 (red-pen review) (“You should not be addressing diabetic’s specific questions. You are no longer just providing information when you do this, you are assessing and counseling, both of which require a license.”); id. at 66 (Burill email) (“[W]e would ask that you make any necessary changes to your site, and moreover, going forward, align your practices with the guidance provided.”); id. at 105 (Burill letter) (“[T]he Board reserves the right to continue to monitor this situation.”). Therefore, we have no trouble deciding that Cooksey’s speech was sufficiently chilled by the actions of the State Board to show a First Amendment injury-in-fact.
The Board’s aggression was also helpful to Cooksey in showing a credible threat of prosecution. From there, his complaint easily satisfied the requirements of causation – that his injury was caused by the conduct he complained of – and redressibility, which requires a non-speculative likelihood that his injury would be redressed by a favorable judicial decision.
Unfortunately, the opinion gave some daylight to the Board’s position. If the laws the Board enforces are professional regulations that do not abridge the First Amendment, such as certain limited limitations placed on attorney speech by state professional conduct rules, then Cooksey may ultimately not prevail. However, because that is question of the case’s merits – how the facts and the law mesh in court – rather than one of standing, or Cooksey’s ability to bring his claim to Court in the first place, this potential defense cannot keep Cooksey out of court (for now).
As for ripeness:
Much like standing, ripeness requirements are also relaxed in First Amendment cases. See New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1500 (10th Cir. 1995) (“The primary reasons for relaxing the ripeness analysis in th[e] [First Amendment] context is the chilling effect that potentially unconstitutional burdens on free speech may occasion[.]”). Indeed, “First Amendment rights . . . are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill.” Id. (internal quotation marks omitted).
The Court then gave the Board a little more abuse for soiling its own bed.
In the same way, Cooksey’s claims present the question of whether the Act and actions of the State Board unconstitutionally infringe on Cooksey’s rights to maintain certain aspects of his website. No further action from the Board is needed: it has already, through its executive director, manifested its views that the Act applies to Cooksey’s website, and that he was required to change it in accordance with the red-pen review or face penalties.
In its conclusion, the court of appeals vacated the district court’s order dismissing Cooksey’s complaint and remanded the case for a proceeding on the merits. The Board can always ask the Fourth Circuit to stay its mandate and grovel with thousands of others to be the 1% whose cert petition the Supreme Court grants. If nothing else, it will buy them time. Hopefully, this opinion will leave a mark on the Board and make abusive government entities everywhere think twice before making any “suggestions” to the lowly citizenry they benevolently manage. Specifically for the Board, its bad dream just got another life, Freddy Krueger-style.
A closing thought: North Carolina does not have an Anti-SLAPP law – not even a mediocre one that could be made good, like Nevada’s (which, starting October 1, 2013, gets a nice octane boost). While § 1983 claims allow prevailing non-governmental parties to seek their attorneys’ fees under § 1988(b), those fees are discretionary, while prevailing Anti-SLAPP fees are mandatory – and more expeditiously awarded. While state law-based Anti-SLAPP laws do not always work as drafted in federal court, there is a serious question whether such a statute’s existence or use would have led to a different outcome without an appeal – or any litigation at all.
You may have noticed that the writing has been a bit slow as of late. Well, one of the things that has been taking our attention away has been an all-hands effort up in Carson City, working on getting a realanti-SLAPP law passed here in the Silver State.
We are proud to announce that the mission has been accomplished. Nevada officially has a new anti-SLAPP law it can be proud of.
For the last two years, the Legal Satyricon has been complaining about the inadequacy of Nevada’s existing anti-SLAPP law. Notably, one judge suggested the possibility that the statute could be construed to only be used in lawsuits involving communications directly to a government agency, and the U.S. Court of Appeals for the Ninth Circuit ruled that the current statute did not allow for an immediate appeal of a special motion to dimiss.
Ever since I moved here in 2011, I’ve hoped to civilize Nevada with a meaningful anti-SLAPP law.
When Nevada’s legislative session commenced in February, the Randazza Legal Group team was a flurry of activity, drafting materials in support of a new Anti-SLAPP bill based on materials from throughout the country to present to the Legislature. Rather than simply replicating the statutes in California, Washington, or Texas, though, the ultimate bill (SB 286) made specific, limited additions to broaden the scope of Nevada’s Anti-SLAPP statutes while maintaining innovative provisions within those laws that were uniquely Nevadan.
Marc Randazza and Nevada Governor, Brian Sandoval, with the freshly-signed Nevada Anti-SLAPP law.
Armed with my dream statute in hand, I flew up to Carson City to present testimony before the Senate Judiciary Committee. My testimony focused on the need for a stronger Anti-SLAPP statute in Nevada, and the harm to individuals and businesses done by the consumption of public and private resources on the litigation of dubious claims against First Amendment-protected speech. The Senate Judiciary Committee, and later the entire Nevada Senate, approved of the bill. I then testified before the Assembly Judiciary Committee in support of the bill. Like the Nevada Senate, the Assembly Judiciary Committee and the entire Nevada Assembly passed the bill. The entire Nevada legislature had agreed that it was time to enhance Nevada’s Anti-SLAPP statutes so that they would embrace – and protect – a broader range of Constitutionally protected expression. On June 3, 2013, Nevada Governor Brian Sandoval signed the bill into law. The changes will take effect on October 1, 2013. The main changes are discussed below. The full text of SB 286 as enacted by Governor Sandoval can be found here.
Expands the Breadth and Scope of Protected Speech. The new law expands protected conduct to include any “communication made in direct connection with an issue of public interest in a place open to the public or in a public forum,” so long as the statement is truthful or made without knowledge of falsehood.
Allows For an Immediate Appeal of a Denied Anti-SLAPP Motion. The new law modifies NRS 41.650 so that a movant is immune from any civil action – not just liability – from claims arising from his or her protected speech, which allows for an immediate appeal.
Expedites Judicial Consideration of Anti-SLAPP Motions. Under the new law’s changes, the time for a court to rule on a motion after filing is reduced to 7 judicial days from 30 after the motion is served upon the plaintiff.
Creates a $10,000 Stick to Deter Frivolous Claims. In addition to allowing for a movant’s recovery of costs and attorneys’ fees, the bill amends NRS 41.670 to allow the court to discretionarily award a successful movant up to $10,000 in addition to his or her reasonable costs and attorneys’ fees. This serves as a significant disincentive and warning for those who might wish to pursue censorious litigation.
Creates SLAPP-Back Provision to Prevent Frivolous Anti-SLAPP Motions. The bill amends 41.670 so that a court denying a special motion to dismiss must award the claimant to successfully defeat the Anti-SLAPP motion his or her costs and reasonable attorneys’ fees upon finding that the Anti-SLAPP motion was “frivolous or vexatious.” I believe this is necessary, lest the Anti-SLAPP law become a barrier to justice for those with supportable claims.
Retains Key Elements From Nevada’s Existing Laws. While the bill represents a massive change to Nevada’s Anti-SLAPP laws, Nevada’s existing statutes had a number of powerful provisions that were unique among Anti-SLAPP provisions are fortunately still intact. The Nevada Attorney General, or the “chief legal officer or attorney of a political subdivision” in Nevada may still “defend or otherwise support the person against whom the action is brought.” NRS 41.660(1)(b). SB 286 also retains the successful Anti-SLAPP movant’s right to bring a separate action against the defeated plaintiff for compensatory damages, punitive damages, and the attorneys’ fees and costs for bringing the new action.
These changes bring Nevada into line with California, Oregon, Washington, Texas, and the District of Columbia as having the most comprehensive and progressive Anti-SLAPP statutes in the nation. I am proud of these changes and the effort my Randazza Legal Group team put into effecting this critical update to Nevada’s Anti-SLAPP statutes. We all look forward to seeing this statute in effect.
No matter your opinion on U.S. copyright law, it is the law of the land. Copying a work without consent may be unlawful and subject the copier to damages. On this blog, and others, we’ve seen instances of legitimate and illegitimate copyright claims.
An entirely separate issue is the manner by which copyright claims are enforced. In the U.S. District Court for the Central District of California, there have been concerns raised regarding certain attorneys, their firms, and (as the judge termed it) their “shell” companies. Yesterday, a hearing was held at which certain non-appearing attorneys affiliated with Prenda Law were invited to attend, as well as an attorney formerly associated with that firm. Ken White at Popehat attended and his writeup is here: http://www.popehat.com/2013/03/11/brett-gibbs-gets-his-day-in-court-but-prenda-law-is-the-star/
This is a case in which the Plaintiff even dismissed the case against the Defendant, but the Court is exploring whether there was fraud committed by the Plaintiff or its counsel in consolidated and related matters. Hearings like this generally do not occur, and apparently the non-appearing attorneys affiliated with Prenda appeared by counsel, rather than in person, which may have violated the court’s order (although they made a last-minute filing arguing they could not properly be compelled to attend). What is particularly interesting is that the subject lawyers and Plaintiffs have been intimately involved with the development of how Bittorrent claims are prosecuted, including early discovery orders, mass joinder, etc. Of note, it has become practice for a content provider to sue John Does, because all that is available is the IP address used to access a covered work. A subpoena is issued to the ISP, who may provide the identity of an account holder. Common practice is then to make a demand on the account holder or amend the complaint to identify them by name. Of concern by this court and others is that the account holder may not be the infringer. A content provider may need to engage in further discovery and investigation to find out who may have had access to the internet connection prior to naming the person as defendant. Recent rulings have suggested that just as you cannot simply sue the person who owns a telephone for a call that may have given rise to liability, you must sue the caller, you cannot simply sue the internet account holder. This court has questioned the Plaintiff’s and its attorneys’ efforts in identifying the infringer. Additional procedural concerns are raised in this case over who financially benefits in the litigation and how content has been transferred.
In a page out of Rakofsky vs. The Internet, it appears that one of the law firms and attorney groups frequently criticized as representing copyright trolls, Paul Duffy, John Steele, and Prenda Law, has gone on the offense against its critics.
copies of the complaints are linked by Jordan Rushie (1st Link). I have not read the entirety of the complaints, but I believe I saw quite a few protected statements that cannot form the basis of liability. Unclear what motivated the suits, but I have a feeling the Plaintiffs will come to regret them.
Editor’s note, the views in this post are those of Mr. Wolman. No other Satyriconistas have taken a public position on this dispute.
Looks like posting compromising photos of unsuspecting victims is not enough. Someone, who obviously once sat on a copy of the nutshell on copyright and online speech to sit at the grown-ups table, decided that merely posting photos was insufficient. This vile person decided it was all hunky-dory to simply solicit photographs of so-called prostitutes without any credible evidence (not to be confused with Smoking Gun, which publishes mugshots and such of people actually arrested).
Greetings citizens of the world, We are Anonymous.
This is a call to all Anonymous worldwide, you have a chance to make a real difference in the lives of hundreds of bullied teenagers and protect them from real harm such as rape or stalking.
Hunter Moore, Founder of previous revenge pornography site http://www.isanyoneup.com is coming back stronger than ever from the shutdown of his previous website. This capitalist makes money off of the misery of others.
People submit pictures of others naked to his website and he posted their social networking profiles along with the pictures.
This time he is taking it a step further and plans to list physical addresses next to the victims pictures along with a map to their house, self proclaiming that he has singlehandedly enabled the stalking of hundreds.
His servers are up. he already has domains he is secretly testing and will go public soon. He hides behind a loophole of section 230 of the United States online decency act which states he cannot be held legally accountable for third party submitted content.
This is a call to all of anonymous. We Will hold hunter moore accountable for his actions, we will protect anyone who is victimized by abuse of our internet, we will prevent the stalking, rape, and possible murders as byproduct of his sites.
Operation Anti-Bully. Operation Hunt Hunter engaged. We are Anonymous, we are Legion, we do not Forgive, we do not Forget, Hunter Moore, EXPECT US. (source)
I applaud them for it. I do have one issue with the missive — I don’t think that Moore is as protected by Section 230 as he likes to believe.
But, lets set the legal issues aside for this post: Moore is a douchebag, and deserves everything that Anonymous may throw at him. Here’s why:
Once upon a time, girls weren’t all paranoid about being raped, having shit slipped in their drink, or being stalked. Then, douchebags discovered rohypnol, stalking, etc., which ushered in a new era of “Why has this asshole just showed up at my table with a drink in his hand? Does he think I’m an idiot?”
Now, thanks to these clowns, you need to convince the girl that she should have sex with you AND that you’re not going to rape her or cut her into little pieces. Girls who were once approachable are scared to death to even have a conversation with you in a bar. All because of douchebags who need to circumvent rejection with drugs. And stalking. Lots and lots of stalking.
The douchebag’s MO is to shit out a cloud of fear. That cloud of fear supports an ecosystem that only benefits two kinds of people — other douchebags and second-wave feminists who absolutely love women in fear, because it makes their bullshit message resonate with just enough terrified women to keep a few of them signing up for their classes. Never forget the best way to control behavior is through FEAR. Just like the TSA, fear creates a justification for existence. There is the implied message of “If you challenge me, I’ll fucking spank you, so you better choose wisely.” But, if you take away fear, the assholes evaporate.
Involuntary Porn sites (like those run by Hunter Moore, Eric Chanson, Craig Brittain, and Chance Trahan) are the online equivalent of the asshole who goes to a bar with roofies in his pocket, or who stalks a girl who won’t give him the time of day. They punish all women through fear because they got rejected by their high school prom date or some chick in a bar or…whatever. They get off on the smell of fear and the resultant power over a woman and this is the drug that gives them the warm tinglys.
Imagine if no women had to live in fear of a shithead ex-boyfriend or these dickless fucks. Forget the morality of what they do, if you want, and think about from a purely utilitarian / economic perspective. Without these nimrods, a woman would always feel comfortable letting you take naked pictures of her. Women would feel comfortable sending you those pics as a “hey good morning” present. More naked pictures of girls means a better world for everyone, in my humble opinion.
Real men don’t get off on scaring women. Real men get off on trying to take that fear away.
Not because we are nice, or chivalrous. OK, some of us are, but more importantly, it’s because we want more naked pics and Hunter More and Craig Brittain are fucking with that.
So fuck you, Hunter Moore. Fuck you, Eric Chanson. Fuck you, Chance Trahan. And Fuck you, Craig Brittain.
Any man who gets off on putting women in fear loses his man card.
I got this story in my inbox — that United Airlines was trying to bully a website that is dedicated to complaining about United Airlines – Untied.com.
United Continental Holdings has sued a Canadian professor who maintains the 15-year-old complaint website Untied.com, which airs complaints from disgruntled United Airlines passengers and employees.
Two suits filed in Canadian courts allege the complaint site violates the airline’s copyright and trademarks. It also alleges the site violates the privacy of senior airline employees by posting contact information for those employees.
Reading that, I got all ready to write a post about what assholes United and its lawyers must be. Imagine my disappointment when I didn’t really get to do that.
The article continues:
United said it is not trying to prevent the site’s owner, Jeremy Cooperstock, from operating a website where people can express their views about United, but instead is trying to protect its intellectual property, such as its logo, and trying to alleviate confusion by United customers who might think they are filing a complaint with the airline on Untied.com.
“We are not requesting the website be shut down,” said United spokeswoman Megan McCarthy.
It was only after an April redesign of Cooperstock’s site, which made it look more like the new United.com, that the airline asked him to modify his site so customers would not be confused, she said, adding that the move was to protect customers and that the airline tried to resolve the matter without going to court.
It looks like United is not concerned about the content on the site, but how it is delivered. The site does look a lot like United’s. There are disclaimers everywhere, but I still don’t see United’s position being all that unreasonable. Yes, almost any idiot should be able to figure out that they are not really at United’s website. On the other hand, the fact that “untied” is a pretty common typo for “united,” coupled with the similarity in look-and-feel, makes United Airlines’ position a lot more reasonable.
If all they are asking is that the gripe site change some site design elements, this does not raise my hackles.
UPDATE: Since the site untied.com seems to have been taken down, here is a side-by-side comparison of the Untied.com and United.com websites.
Some out there, who don’t really understand trademark law, seem to believe that disclaimers on the Untied.com site mean that nobody would be confused by the mock United site. Others say that only a “moron in a hurry” could be confused by the two. I think that such opinions are ill-informed, and the product of the same instincts that I have — a knee-jerk reaction to start off on the side of the little guy against the big corporation; to immediately (without analysis) think that any attack on a critic’s site is an attack on free speech.
I look at these kinds of cases with a rebuttable presumption that the big bad corporation is the bad guy. That presumption, in this case, seems to be rebutted.
The first rebuttal comes from the information that United let the site go for 15 years, and only complained when the gripe site changed its site design. Historical screen captures show that the site didn’t used to look like that.
The second rebuttal comes from this: “Cooperstock offered to work for United as a paid consultant advising the airline on how to improve customer service. United declined.” If that is true, it is not entirely dispositive. Nevertheless, it does skew the optics of the situation a little. I would be interested to see Cooperstock’s response to that.
The third one comes from Canadian trademark law. Cooperstock is Canadian, and the case was filed in Canada. Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 SCR 772 gives us some instruction. In that case, the Canadian Supreme Court held that a court should measure the “likelihood of a mistaken inference” from the perspective of the “ordinary hurried purchaser.” The court considered the “ordinary hurried purchaser” to lie somewhere between the “moron in a hurry,” and the “careful and diligent purchaser.” The court relied upon Delisle Foods Ltd. v. Anna Beth Holdings Ltd. reflex, (1992), 45 C.P.R. (3d) 535 (T.M.O.B.), whic stated at pp. 538-39:
When assessing the issue of confusion, the trade marks at issue must be considered from the point of view of the average hurried consumer having an imperfect recollection of the opponent’s mark who might encounter the trade mark of the applicant in association with the applicant’s wares in the market-place.
As Cattanach J. explained in Canadian Schenley Distilleries, at p. 5:
That does not mean a rash, careless or unobservant purchaser on the one hand, nor on the other does it mean a person of higher education, one possessed of expert qualifications. It is the probability of the average person endowed with average intelligence acting with ordinary caution being deceived that is the criterion and to measure that probability of confusion the Registrar of Trade Marks or the Judge must assess the normal attitudes and reactions of such persons.
When we consider the issue of “initial interest confusion,” I think that Mr. Cooperstock has some problems. In fact, it seems to be a testament to United’s patience that they did not go after the Untied.com domain name a long time ago.
When looking at this, it is important to understand that there are two types of people who will be dissuaded from doing business with United: The first group are people who read the message on Untied.com, which boils down to “United sucks.” If Cooperstock convinces you of that fact, then that is the marketplace of ideas in action. That is Mr. Cooperstock providing a valuable service, and properly exercising his right to free expression.
On the other hand, there is a second group — a group that comes to the website through mistake, who lingers just a little bit, and by the numbers, a portion of them move on to other websites.
You see, the issue of consumer confusion is not resolved with the simpleton analysis of “nobody would buy a plane ticket from untied.com.” The issue is that more than a few consumers will type “untied” instead of “united” every day — just through the likelihood of that common typographical error occurring. If you are an “ordinary hurried purchaser,” you may get to that site, even with a popup disclaimer, and spend a few minutes there before you realize that you are not, in fact, at United.com.
What do you do then?
Most people would then do what they could to find the right website. But, it wouldn’t take a genius to realize that a certain percentage of people, who might otherwise have bought a ticket, will put it off, or not buy at all, just because the impulse passes. Another percentage may have sought out United.com, just for information, who then lose interest. Remember, a business’ website is not merely a place to purchase tickets. It is a valuable segment in its branding strategy. The pop-up and disclaimers are of little value, given that the average consumer isn’t likely to read the pop up or the disclaimers. When it comes to initial interest confusion on the Internet, even a few seconds’ long detour will cause some harm to the mark owner.
The fact is, a certain number of United’s consumers suffer inconvenience due to the site, and independent of the message on the site, they are driven away from doing business with the airline.
Were I judging this case, I’d say that Cooperstock has every right to say every last thing he says on his website. But, I think his choice of domain, and his attempt to make the site look and feel like United.com, both crossed the line. I think it went even further if United asked him, pre-suit, to simply make some design changes, and he refused. It goes over the cliff if United’s claim that Cooperstock offered to provide his “customer relations services” for a fee.
Sorry guys, I love the little guy as much as anyone else. I never fly United either, mostly because their website is a nightmare to navigate, and I haven’t thought too highly of their customer service either. But, sometimes the little guy is out of bounds.
This blog often features articles on developments in § 230 of the Communications Decency Act, or the Digital Millennium Copyright Act, but the significance – and nuance – of such rulings may not be immediately appreciable to many readers. Hopefully such posts are helpful to lawyers. However, they are important to non-lawyers and even only casual users of the Internet. In order to provide retroactive context to those articles and background for future ones, we provide this brief history of Internet-related laws.
…
In the two decades since the Internet reached large-scale consumer adoption, its role in business, recreation and every facet of life has been largely taken for granted. However, it interacts with the law in a number of ways that some might not expect. With services such as Google, Facebook and YouTube thoroughly integrated with every facet of life – with established brands as banal as Tide laundry detergent vying to be “liked” by you on facebook, to political campaigns posting videos directly to the user-generated video site – that it is easy to overlook the patchwork of federal law that allows the internet to operate.
Federal law embraced the internet with some of its existing measures, such as the Cable Privacy Act of 1984, 47 U.S.C. § 551 (requiring cable companies – which have today become internet service providers including Time Warner and Comcast – to provide notice to subscribers before turning over personally identifying information pursuant to a lawful subpoena). This law remains particularly significant in protecting anonymous activity and speech online, ranging from blog comments to the use of BitTorrent – all of which can be done without behind an IP address until the user’s internet service provider is subpoenaed and provides notice to its customer that his or her personally identifying information will be produced unless the subpoena is quashed.
Criminal law has also been instructive in shaping the law of the internet. The Stored Communications Act, 18 U.S.C. §§ 2701-2712, prohibits service providers such as Google and Facebook from turning over users’ passwords and internal messages (such as messages and chat logs from one Facebook user to another) without a court order. Additionally, hacking – a topic given great attention in the 1990s, but still persisting today – was made punishable with both criminal and civil penalties by 18 U.S.C. § 1030.
Perhaps the greatest tool of all for the internet, though, has been Section 230 of the Communications Decency Act, 47 U.S.C. § 230. Section 230 immunizes service providers like Yahoo and Google for the acts of its users. When someone opens a blogspot blog that allegedly defames someone, it is not Google’s fault – rather, liability falls on the shoulders of the blog’s author. Similarly, message board operators are not liable for the torts of their users who may post tortious material to the website. If they were, services such as Yahoo’s finance message boards and (unintentionally hilarious) Yahoo Questions would have never taken off. This protection is not vitiated if a web service edits or deletes a user’s submission. 47 U.S.C. § 230(c)(2).
While courts have consistently upheld § 230’s protections for online service providers, the law has not been an absolute shield. Where a site creates its own content that is tortious, then the service can be held liable. Similarly, if the site requires a user to post tortious material as a condition of using its service, then the site is not afforded § 230 protections. Fair Housing Counsel v. Roommates.com LLC, 521 F.3d 1157, 1166 (9th Cir. 2008) (“By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information” and thus not entitled to § 230’s immunity). For pure social media sites, § 230 provides valuable immunity against litigation from angry parents and the thin-skinned. In states with strong anti-SLAPP statutes, § 230 has worked in tandem with these laws to create a fortress around internet companies, protecting them from common law claims and requiring parties with attorneys foolish enough to bring these claims to pay the companies attorney’s fees in most cases. (California and Seattle, where numerous social media companies are based, allow defendants to recover attorneys’ fees incurred in successful anti-SLAPP motions).
There is, however, one hole in § 230 – it expressly does not apply to intellectual property claims. 47 U.S.C. § 230(e)(2). Thus, online service operators were potentially liable for hundreds of thousands of dollars in damages if their users copied and distributed copyrighted content on their sites. In 1998, however, Congress enacted the Digital Millennium Copyright Act (“DMCA”) to combat this problem. 17 U.S.C. § 512. Within this legislation, Congress granted certain entities, such as internet service providers, immunity from infringement as transitory networks where the infringing data does not reside – but it imposed burdens onto both web hosts, web sites and even right holders.
For most self-hosting bloggers and other internet users, the DMCA is fairly straightforward. The service provider must register an agent to receive DMCA notices with the U.S. Copyright Office for $105, which is listed in an online registry of DMCA agents. When receiving a proper DMCA take-down notice under 17 U.S.C. § 512(c)(3)(A), the service operator must remove the infringing content within a reasonable period of time, or risk being held liable for infringement. The DMCA take-down process requires rights holders to seek out instances of infringement and send notices to infringers, but unlike a lawsuit for infringement, does not require the right holder to obtain a copyright registration certificate (or, in some circuits, merely an application).
While many small website operators do not comply with the DMCA, rights holders often send DMCA-compliant take-down notices, which are honored with the removal of allegedly infringing content. For large services that stake their entire existence on user-submitted content, however, complying with the DMCA becomes remarkably more complicated. For a service such as YouTube (or, more in your author’s practice area, a “tube site” containing pornography) the DMCA takes no complex new dimensions that are still unsettled despite the DMCA being more than a decade old, and the user-generated segment of web entertainment not being significantly younger.
For instance, the Second Circuit’s recent decision in Viacom v. YouTube, vacating many of the Southern District of New York’s 2010 conclusions about how the DMCA operates, has created significant uncertainty about the meaning of 17 U.S.C. § 512(c)(1). For a service such as a large “tube” site, particularly one that monitors its submissions to avoid unlawful or inappropriate content, there is a question as to what is required in addition to a DMCA take-down notice to constitute “actual notice” of infringement, or “facts or circumstances from which infringing activity is apparent.” Id. The Second Circuit’s decision also re-opens the question of what constitutes the “right and ability” to control infringing material: Namely, whether this standard is contiguous with the same standard articulated in the doctrine of vicarious copyright infringement, or subject to a different, DMCA-specific standard as previously found by the Southern District of New York (requiring “specific knowledge” of infringement in order to have the right and ability to control it).
The DMCA contains additional twists and turns for both service operators and rights holders. If a service provider has users who consistently engage in copyright infringement, it must ban them in accordance with an established, publicized policy to terminate these repeat infringers. 17 U.S.C. § 512(i). Additionally, there is a question as to what constitutes an effective termination – while banning by e-mail address may satisfy the procedural requirements of this provision, the ease of creating new e-mail addresses ensures that this action would fall short of substantively fulfilling it. Service operators must also act as an ombudsman for counter-notifications seeking the reinstatement of non-infringing content under § 512(g)(3).
For right holders, fair use of the copyrighted work must be considered before sending a takedown notice. § 512(c)(3)(A) (requiring “good faith belief” of infringement and signing of notice under penalty of perjury). Failing to satisfy this requirement, or sending a DMCA take-down notice that is otherwise improper – such as to remove critical, non-infringing material, or to assert the rights of a third party who the notice-sender does not represent – makes the misrepresenting notifier liable for the uploader’s damages, costs and attorneys’ fees under § 512(f). (Similarly, a misrepresentation in a § 512(g) counter-notification also triggers the penalties of § 512(f)). Counterbalancing this restriction, though, is the right holder’s power to issue a federal subpoena under § 512(h) – again, without even a copyright registration – in order to identify an infringer. While this provision of the DMCA is infrequently used, the jurisprudence of § 512(h) is a fascinating sub-topic for another time.
However, the DMCA provides no protection for trademark infringement committed by a third party. While proposed laws like PIPA and SOPA addressed the full theater of potential intellectual property infringement, the DMCA protects only against copyright infringement liability. Thus, a novel theory from plaintiff’s attorneys is that a third party’s use of a trademarked name in an internet posting constitutes trademark infringement and unfair competition under 15 U.S.C. §§ 1114 and 1125. While this is a frivolous claim to bring against a service provider, it can be pled to avoid a motion to dismiss in jurisdictions without robust anti-SLAPP statutes that allow for the inclusion of evidence in anti-SLAPP motions. This leads to summary judgment and, in many cases, settlement – a detriment to the companies falling prey to these questionable suits.
Acting in conjunction, federal criminal, telecommunications and copyright law has created an ecosystem ripe for enormous online commerce. Without these laws, the multi-billion dollar companies that dominate the internet likely would not exist. While the ecosystem is still in flux, and will be as both technology and IP laws change, services such as Facebook, YouTube, Pinterest and Tumblr are here to stay.
Posted by rhansen 
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